This matter comes before the Court on Plaintiffs' Motion for
Preliminary Injunction in which Plaintiffs seek to enjoin Defendants
from conducting drug interdiction checkpoints, and Plaintiffs'
Motion for Class Certification. While we GRANT
Plaintiffs' Motion for Class Certification, we must
DENY Plaintiffs' Motion for Preliminary
Injunction because the City of Indianapolis' use of drug
interdiction checkpoints does not violate the Fourth Amendment to the
United States Constitution.

I. BACKGROUND1

Since August of 1998, the Indianapolis Police Department (IPD), in
cooperation with other law enforcement agencies, has conducted at least
six drug interdiction checkpoints at various location in Indianapolis.
The primary goal of the checkpoints is to interrupt the flow is illegal
narcotics throughout Indianapolis.

The parties have agreed that for purposes of Plaintiffs'
request for preliminary injunctive relief, it will be assumed that the
checkpoints are being, and would continue to be, conducted in accordance
with the IPD's written guidelines.2 Those
guidelines are as follows:

DRUG CHECKPOINT CONTACT OFFICER DIRECTIVES BY ORDER OF THE CHIEF OF
POLICE BY ORDER OF THE CHIEF OR POLICE

1. Upon approaching vehicle, ask driver for license and registration.
Advise the citizen that they are being stopped briefly at a drug
checkpoint.

2. Look for signs of impairment, conduct open view examination of
vehicle from outside vehicle.

3. If you have articulatable reasons to reasonably believe the person
might be armed, you should ask the person to exit the vehicle where a
pat-down in conformance to the rule of Terry v.
Ohio should be performed in an attempt to locate a
weapon.

4. If you have an articulatable reason to reasonably believe the
person might be armed, you may also search the passenger compartment of
the vehicle for a weapon.

5. A warrantless search of a vehicle is permitted if the person in
control of the vehicle gives a valid consent to search. The officer may
not overbear the will of the person consenting. A court will look at the
totality of the circumstances to determine if the consent was given
willingly and knowingly. If the person is in custody (beyond being
stopped at the checkpoint), then Indiana law requires the person be
warned of their right to counsel before giving consent to the police to
search.

6. A warrantless search of a vehicle is also permitted if the officer
has probable cause to believe the vehicle contains contraband, evidence
or fruits of crimes. Probable cause is determined on the basis of
whether a reasonable person would believe that seizable objects would be
found in the vehicle. An indication from a trained drug detection dog
would establish problem cause.

7. A vehicle in police custody which is to be towed may be
inventoried pursuant to General Order 9.02. The towing of a vehicle must
be "reasonable" before a court will permit an inventory to
be conducted.

8. EVERY VEHICLE BEING STOPPED MUST BE EXAMINED IN THE SAME MANNER
UNTIL PARTICULARIZED SUSPICION OR PROBABLE CAUSE DEVELOPS. THERE WILL BE
NO EXCEPTIONS! A DRUG DETECTION DOG WILL WALK AROUND AND EXAMINE
EVERY VEHICLE STOPPED AT THE CHECKPOINT.

9. THERE WILL BE NO DISCRETION GIVEN TO ANY OFFICER TO STOP ANY
VEHICLE OUT OF SEQUENCE. WHEN THE SEQUENCE OF VEHICLES HAVE (sic) BEEN
TOTALLY DEALT WITH AND EITHER RELEASED OR SEIZED, NO
VEHICLES WILL BE PERMITTED TO PASS THE CHECKPOINT BEFORE ANOTHER
SEQUENCE IS TOPPED AFTER ALL VEHICLES IN THE CURRENT SEQUENCE HAVE BEEN
RELEASED OR SEIZED:

(Stipulation of the Parties, Attachment 1.)

Approximately thirty (30) Indianapolis Police Department officers are
present at each checkpoint, along with patrol cars containing mobile
date terminals. (Stipulation of the Parties at ¶7). Not every
vehicle encountering the checkpoint area is stopped. Rather, prior to
the operation of the checkpoint, IPD supervisors determine how many
vehicles will be stopped at a time. (Marshall Depew Affidavit at
¶3.) The checkpoints are begun by stopping the predetermined number
of vehicles. (Id. at ¶4.) The rest of the
traffic is allowed to proceed with no interruption until the stopped
vehicles have all been initially processed and either allowed to proceed
or diverted for further processing. (Id.) When the
last of the initially stopped vehicles has left, then the next group (of
the same predetermined number) of vehicles is stopped for processing.
(Id.) These stops continue in this manner, which
no discretion in the number of vehicles stopped or which vehicles are
stopped. (Id.) "When drivers are stopped,
the officers ask for (their driver's) license and (vehicle)
registration. If the driver does not possess a valid license and
registration, then the information is run through the mobile data
terminal in the adjacent police car." (Stipulation of the Parties
at ¶7.) A typical stop also 2 to 3 minutes. (Depew Aff. at
¶5.)

The parties stipulate to a certification
of the Plaintiffs' class, as follows:

any and all persons driving
vehicles who have been stopped or [are] subject to being stopped in the
future at the drug interdiction roadblocks maintained by the City of
Indianapolis in an attempt to interdict and curtail unlawful drugs and
unlawful drug use.

(Stipulation to Certify Cause as a Class Action.)

Although the parties stipulate to the certification, the court has a
duty to evaluate independently the proposed class to ensure its
compliance with Fed.R.Civ.P. 23. See Retired Chicago
Police Assn. v. City of Chicago, 7 F.3d 584, 599 (7th Cir. 1993).
Rule 23(a) sets forth the general prerequisites to a class action:

One or more members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are questions of law
or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class, and (4) the representative parties will fairly and adequately
protect the interests of the class.

In this case, Plaintiffs clearly meet these threshold requirements.
First, the class probably exceeds one half million members and continues
to grow each day, rendering joinder of all members of the class
impracticable. Second, the legal issues surrounding the roadblocks are
largely the same, with the principal dispute being their
constitutionality. Third, the claims of the representative parties are
typical of the claims of the class. Finally, the party representatives
appear committed to this cause and their counsel is a very capable and
skilled attorney, with extensive experience in similar matters.

Rule 23(b) contains additional requirements for class actions. First,
separate actions must create a risk of inconsistent adjudications or
adjudications that would be dispositive of the interest of other members
not parties. See Fed.R.Civ.P. 23(b)(1). Second,
"the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect
to the class as a whole." See Fed.R.Civ.P.
23(b)(2).5

Both of these requirements are also easily satisfied here. Separate
adjudications on this issue would certainly create the risk of
inconsistent rulings, in addition to potentially disposing of the issue
of the checkpoints' constitutionality without the involvement of
all class members. Further, Defendants' actions impact all the
proposed class members as a group, thereby making injunctive relief
appropriate. Accordingly, we find that Plaintiffs satisfy all the
conditions for a Rule 23(b)(2) class action, and we thus
CERTIFY Plaintiffs' class.

III. PRELIMINARY INJUNCTION

We now turn to the heart of this dispute - - Plaintiffs'
Motion for Preliminary Injunction. When evaluating a motion for
preliminary injunctive relief, we must determine whether the party
seeking relief has demonstrated that: (1) there is a reasonable
likelihood of success on the merits of its claim; (2) no adequate remedy
at law exists; (3) irreparable harm will result if preliminary
injunctive relief is denied; (4) the irreparable harm suffered without
preliminary injunctive relief outweighs the irreparable harm the
nonmoving party will suffer if the preliminary injunction is granted;
and (5) the preliminary injunction will not harm the public interest.
Platinum Home Mortgage Corp. v. Platinum Financial Group,
Inc., 149 F.3d 722, 726 (7th Cir. 1998); Rust
Environment & Infrastructure, Inc. v. Teunissen, 131 F.3d
1210, 1213 (7th Cir.1997). "The threshold consideration in a
motion for a preliminary injunction is the moving party's
likelihood of success on the merits of the underlying claim."
Id.

Plaintiffs contend that Defendants have violated the Fourth Amendment
by using roadblocks to seize motorists without individualized suspicion
for the primary purpose of determining if they possess or are under the
influence of illegal drugs.6

There is no question that stopping a vehicle at a traffic checkpoint
by law enforcement officers constitutes a seizure within the meaning of
the Fourth Amendment. Michigan Dept. of State Police v.
Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485 (1990);
United States v. Trevino, 60 F.3d 333, 336 (7th
Cir. 1995). To be reasonable under the Fourth Amendment, a seizure
ordinarily must be based on individualized suspicion of wrongdoing.
Chandler v. Miller, 502 U.S. 305, 117 S.Ct. 1295
(1997). However, the Supreme Court has held that individualized
suspicion is unnecessary when the seizure is a brief stop for
questioning or observation at a sobriety or immigration roadblock.
Michigan Dept. of State Police v. Sitz, 496 U.S.
444, 1l0 S.Ct. 2481 (1990) (sobriety); United States v.
Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074 (1976)
(immigration). The Court has also strongly implied that such roadblocks
for driver's license and vehicle registration checks are
permissible. Delaware v. Prouse, 440 U.S. 648, 99
S.Ct. 1391 (1979) (approving in dicta); see also United
States v. Trevino, 60 F.3d 333, 336 (7th Cir. 1995) (upheld
checkpoint for license and insurance checks).

The Supreme Court has held that a Constitutional challenge to a law
enforcement checkpoint turns on whether the initial stop at the
checkpoint was reasonable. Id.; see
also Trevino, 60 F.3d at 336. This, in turn, requires a balancing
of the intrusion on the individual's Fourth Amendment rights
occasioned by the initial stop against the promotion of legitimate
governmental interests (hereinafter referred to as the
Brown balancing test). Sitz,
496 U.S. at 449-50, 110 S.Ct. at 2484-85; Brown v.
Texas, 443 U.S. 47, 49, 99 S.Ct. 2637 (1979). In applying the
Brown balancing test, the Supreme Court has stated
that district courts must consider the circumstances of both the
"objective intrusion" of the seizure - - the duration of
the stop itself and the intensity of any questioning and visual
inspection that might attend it, Sitz, 496 U.S. at
452, 110 S.Ct. at 2486, - - and the "subjective
intrusion" - - its potential for generating fear and surprise
to law-abiding motorists Id.; see also Trevino, 60
F.3d at 336.

Plaintiffs contend that the Brown balancing
test does not apply in this case and, thus, cannot justify the
checkpoints. According to Plaintiffs, the Brown
balancing test is appropriate only if the government can demonstrate a
"special need" for the checkpoints beyond the normal need
for criminal law enforcement. (Plaintiffs' Memorandum in Support
at 7-9) (citing Treasury Employees v. Von Raab,
489 U.S. 656, 109 S.Ct. 1384 (1989) and Skinner v.
Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct.
1402 (1989)). Plaintiffs contend that the public interest cited here
- - drug interdiction - - is not a "special need"
that checkpoints may be used to target.

Unfortunately for Plaintiffs, the Supreme Court in
Sitz, 496 U.S. 451, 110 S.Ct. 2481, has previously
rejected this analysis, holding that the "special needs"
requirement set forth in Von Raab and
Skinner7 does not
apply to "cases dealing with police stops of motorists on public
highways." Id. at 496 U.S., at 450, 110
S.Ct., at 2485. Instead, the Court directed that the reasonableness of a
seizure of a motorist on a public highway without individualized
suspicion be determined solely on the basis of the
Brown balancing test. Id.
Therefore, consistent with Sitz, we evaluate the
constitutionality of the checkpoints before us by applying the
Brown balancing test.

B) APPLYING THE BROWN BALANCING TEST

1) GOVERNMENT'S INTEREST

The government's interest in interdicting narcotics is beyond
serious dispute. The narcotics industry is "one of the greatest
problems affecting the health and welfare of our population,"
Treasury Employees v. Von Raab, 489 U.S. 656, 668,
109 S.Ct. 1384, 1392 (1989), and has created a "veritable national
crisis in law enforcement." United States v.
Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 3309
(1985). We need not dwell further on this issue.

The more significant issue is whether the checkpoints in controversy
here are effective in addressing the drug problem. We do not attempt to
determine, however, whether the use of checkpoints is the most effective
means of achieving the governments objectives, or even whether it is
more or less effective than other means. It is not for the courts to
decide "which among reasonable alternative law enforcement
techniques should be employed . . . . [F]or purposes of Fourth
Amendment analysis, the choice among such reasonable alternatives
remains with the governmental officials who have a unique understanding
of, and a responsibility for, limited public resources, including a
finite number of police officers." Sitz, 496
U.S. at 453-54, 110 S.Ct. at 2487. The courts must decide only whether,
when evaluated against the importance of the governmental interest and
the degree of intrusion, the checkpoints are at least reasonably
effective as a tool for advancing the governments interest.
Id.

The uncontroverted evidence establishes that the checkpoints in this
case have resulted in fifty-five drug related arrests out of a total of
1161 vehicles stopped, representing an effectiveness ratio (number of
arrests divided by number of vehicles stopped) of approximately 4.7%.
(See Defendants' Exhibit B.) Although at
first blush this figure may appear low, the Supreme Court has approved
checkpoints where the effectiveness ratio was 1.6% (Sitz,
supra - sobriety checkpoint) and 0.5% (United
States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074 (1976) -
immigration checkpoint). Relative to these other cases, the checkpoints
in the instant case are substantially more effective.

2) LEVEL OF INTRUSION

Next we address the extent of the intrusion imposed upon the
individual motorists subjected to the checkpoints. In making this
examination, we consider both the objective and subjective intrusions
that the motorists have necessarily encountered.
Sitz, 496 U.S. at 452, 110 S.Ct. at 2486.

a) Subjective Intrusion

"[T]he critical factors in assessing a checkpoint's
'subjective intrusion' are, first, whether it is set up in a
manner which informs incoming motorists that this is an official stop
and, secondly, whether it gives the officers conducting the stop
unbridled discretion to randomly target individual motorists."
Trevino, 60 F.3d at 337; see also
Sitz, supra.

We are told that the individual motorists are informed that the
checkpoints are official by virtue of the obvious massive law
enforcement presence at each checkpoint, including a large number of
uniformed officers with fully marked police vehicles. Additionally, the
dates of the checkpoint operations (not their locations) have been
released in advance to the public, resulting in media coverage which has
increased public awareness of their existence.

Second, and perhaps more importantly with regard to analyzing the
degree of subjective intrusion, is the amount of discretion afforded law
enforcement officers at the scene. The constitutionality of a checkpoint
often turns on officer discretion. See Sitz, supra;
Martinez-Fuerte, 428 U.S. 543,96 S.Ct. 3074;
United States v. Huguenin, 154 F.3d 547, 557 (6th
Cir. 1998).

The IPD guidelines restrict the discretion of officers on the scene,
but do not eliminate it altogether. For example, the City acknowledges
that "[i]n the event a problem occurs which requires a change in
the pattern of stopping vehicles, an on scene supervisor will determine
what stopping sequence is appropriate and document the change with an
appropriate explanation for the change." (Government's
Response Brief at 14.) The on-scene supervisor is provided discretion
apparently in order to ensure that traffic backups do not create an
unconstitutional seizure by virtue of the length of the traffic delay
- - a valid concern. Although officers at a checkpoint should be
vested with the least amount of discretion reasonable under the
circumstances, we recognize that some limited discretion is necessary to
properly address concerns such as traffic backups or ensnarlments that
may inherently accompany the checkpoint process. Here, a
supervisor's authority is limited to changing the stopping
sequence only when traffic problems occur, not simply on a whim or on
some other basis. This is an allowance of minimal discretion and has
been afforded only to the on-scene supervisor. It is sufficiently
circumscribed to pass constitutional muster. In all other respects, the
policy directs that the on-scene officers operate without discretion.
Their actions are strictly regulated by the official checkpoint
guidelines that have been promulgated by the Chief of Police.
Accordingly, we hold that the level of subjective intrusion experienced
by motorists stopped at the police checkpoints is minimal.

b) Objective Intrusion

The level of objective intrusion is determined by the duration of the
stop itself and the intensity of any questioning and visual inspection
that might attend it. Sitz, 496 U.S. at 452, 110
S.Ct. at 2486.

The typical stop at the Indianapolis checkpoints lasts approximately
2 to 3 minutes. (See Depew Aff. ¶
5.)8 As previously discussed, the
checkpoints are conducted so as to avoid traffic delays, which could
cause a motorist to be detained, that is, "seized" for a
duration exceeding constitutional limits.9See Merrett v. Moore, 58 F.3d 1547, 1552 (11th
Cir. 1995), cert. denied, 117 S.Ct. 58 (1996). As
it is, the duration of the stops is consistent with checkpoints approved
by the Supreme Court in both Sitz and
Martinez-Fuerte. In those
cases, the Court upheld the constitutionality of brief roadblock
seizures that lasted about twenty-five seconds at a sobriety checkpoint,
(Sitz, 496. U.S. at 444-56, 110 S.Ct. at 2483-88),
and seizures that lasted 3 to 5 minutes at an immigration checkpoint
away from the border. Martinez-Fuerte, 428 U.S. at
544-48, 96 S.Ct. at 3077-78.

The questioning and inspection occurring during the checkpoint stops
in this case include asking for the motorist's driver's
license and vehicle registration and having a narcotics dog sniff the
exterior of their vehicle. Though asking for a motorist's license
and registration is fairly non intrusive, having a dog sniff the
exterior of a motorist's vehicle warrants a closer look. Here, the
drug detection dog sniffs only the exterior of the vehicle and is
positioned in a place the dog has the right to be, suggesting that the
intrusion is similar to that of an officer looking for contraband in
plain view. Cf. Horton v.
California, 496 U.S. 128, 142, 110 S.Ct. 2301, 2311 (1990).
Indeed, the Seventh Circuit has held that "[a] sniff test, by a
well-trained narcotics detection dog, involves only minimal intrusion
into a person's privacy." United States v.
Teslim, 869 F.2d 316, 323 (7th Cir. 1989) (citing
United States v. Place, 462 U.S. 696, 706-707, 103 S.Ct. 2637,
2644 (1983)). Other courts have determined specifically that a narcotics
dog's sniff of the exterior of a vehicle does not, in itself,
constitute a "search." See United States v.
Seals, 987 F.2d 1102, 1106 (5th Cir. 1993); United
States v. Rodriguez-Morales, 929 F.2d 780, 788 (1st Cir. 1991);
United States v. Morales-Zamora, 914 F.2d 200, 205
(10th Cir. 1990). The drug detection sniff and the license and
registration check together and separately constitute a minimal and thus
an acceptable degree of intrusion.

3) CONCLUSION: CHECKPOINTS CONSTITUTIONAL UNDER
BROWNBALANCING TEST

Overall, the checkpoints in controversy are targeted effectively and
are limited sufficiently to combat the city's drug crisis with
minimal intrusion on motorists. Accordingly, we hold that the checkpoint
procedures are constitutional under the Brown
balancing test.

An examination of the two leading Supreme Court cases on highway
roadblocks - - Sitz, 496 U.S. 451, 110 S.Ct.
2481 (1990) and United States v. Martinez-Fuerte,
428 U.S. 543, 96 S.Ct. 3074 (1976) - - reveals strong support for
our holding. In Sitz, the Court approved the use
of sobriety checkpoints where the motivation was the government's
"interest in preventing drunk driving." 496 U.S. at 455.
There, the Court simply applied the Brown
balancing test and determined that the magnitude of the drunk driving
problem, coupled with the effectiveness of the checkpoints, outweighed
the minimal intrusion on motorists. Other than the shear magnitude of
the drunk driving crisis, the Court did not identify any other special
or regulatory need to justify the use of checkpoints to combat drunk
driving. Id.

Similar to the government's strong interest in preventing drunk
driving, the narcotics checkpoints in this case are justified by the
government's similarly strong interest in preventing drug
trafficking. The intrusion on the rights of motorists in this case is no
greater than the level of intrusion approved in
Sitz. If Sitz were the only
Supreme Court discussion of roadblocks, one might attempt to distinguish
sobriety checkpoints from narcotics checkpoints on the basis that
sobriety checkpoints relate directly to highway safety. Prior to
Sitz, however, the Supreme Court in
Martinez-Fuerte upheld a checkpoint away from the
international border to search for illegal aliens, which need obviously
had no direct relation to highway safety.

Applying the Brown balancing test, the Court in
Martinez-Fuerte held that routine checkpoint stops
were necessary because the flow of illegal aliens cannot be controlled
effectively at the border. Id. at 556-557, 96
S.Ct. at 3082-3083. The Court concluded that the checkpoint stop to
search for illegal aliens was a "quite limited intrusion" on
Fourth Amendment interests. Id. at 557-558, 96
S.Ct. at 3082-3083.

Like illegal aliens in Martinez-Fuerte, the
flow of narcotics cannot be effectively stopped at the border or through
other conventional law enforcement methods, as expressed by the police
department in the case at bar and as evidenced by the continuing drug
problem. Indeed, narcotics are easily hidden in an automobile, in that
sense posing even greater detection problems than do illegal aliens.
Absent the holding in Sitz, it might be argued
that immigration checkpoints are distinguishable from narcotics
checkpoints because immigration checkpoints advance an administrative
purpose, not a criminal one Sitz, however,
explicitly disposes of that contention, holding that it is permissible
for a checkpoint to implicate possible criminal sanctions, i.e.
arresting drivers for drunk
driving.10 Together,
Sitz and Martinez-Fuerte
make it clear that an otherwise valid checkpoint is not unconstitutional
simply because its primary purpose is to interdict narcotics
traffic.11

Although neither the Supreme Court nor the Seventh Circuit has
addressed specifically whether a checkpoint for the official purpose of
interdicting drug traffic is permissible under the Fourth Amendment, an
examination of the various state and federal cases involving roadblocks
whose purpose was, wholly or in part, to interdict narcotics reveals
further support for our conclusion that the Indianapolis roadblocks are
constitutional. Three categories of narcotics roadblocks emerge from
those cases.

First is the narcotics roadblock whose stated purpose is to check
motorists' driver's licenses and registrations, but whose
actual purpose is to search for narcotics. These roadblocks are known as
"pretext" roadblocks and often get struck down as
unconstitutional. Typically, the problem with pretext roadblocks is that
they leave too much discretion in the hands of the officers on the scene
because the official guidelines do not cover the actual purpose, to wit,
interdicting narcotics. See United States v.
Huguenin, 154 F.3d 547 (6th Cir. 1998) (pretext roadblocks
provide too much discretion to officers on the scene);
Garcia v. State, 853 S.W.2d 157 (Tex.Ct.App.1993)
(driver's license checkpoint unconstitutional because it was a
subterfuge for more general criminal investigation).

The second category includes narcotics roadblocks whose sole stated
and actual purpose is to interdict narcotics. Few cases address this
type of roadblock, but typically they are upheld because the official
guidelines cover the narcotics purpose, thus limiting office discretion.
See State v. Damask, 936 S.W.2d 565 (Missouri
1996). The courts also recognize a compelling public interest in
stopping the flow of illicit drugs. Id.

The third category includes narcotics roadblocks whose stated and
actual purposes include searching for narcotics
and checking licenses and registrations. These
roadblocks are almost always upheld because, even assuming a roadblock
for the sole purpose of interdicting narcotics is invalid, another valid
reason nevertheless exists for the checkpoint, to wit, license and
registration checks. See Merrett v. Moore, 58 F.3d
1547 (11th Cir. 1995) (holding that a mixed motive roadblock, used
primarily to interdict drugs, but also to check driver's licenses
and registration, was
constitutional)12;
State v. Emerson, 474 N.W.2d 695 (N.D. 1991)
(finding that a safety inspection checkpoint, the primary purpose of
which was actually drug interdiction, to be constitutional);
but see Galberth v. United States, 590 A.2d 990
(D.C.App. 1991) (checkpoint for drugs and firearms
unconstitutional).

The checkpoints in this case fall in the third category. They
obviously are not "pretext" roadblocks since interdicting
narcotics is one of their official purposes. In fact, both Defendants
and Plaintiffs stress the primary purpose of the roadblocks as the
interdiction of narcotics, suggesting that the checkpoints fall into the
second category. However, a secondary purpose of the checkpoints is to
check driver's licenses and vehicle registrations; thus, the
checkpoints are more appropriately considered in category three. This
distinction is important when considering the cases upon which
Plaintiffs rely.

Plaintiffs cite the Sixth Circuit's recent decision in
United States v. Huguenin, 154 F.3d 547 (6th Cir.
1998), in which a narcotics checkpoint was declared unconstitutional. In
that case, the police set up a checkpoint whose official purpose was to
review driver's licenses and registrations. The court, however,
finding that the actual purpose of the checkpoint was to search for
drugs, went on to hold that the checkpoint violated the Fourth Amendment
because:

The evidence indicates that when the purpose of a checkpoint is
pretextual, the guidelines set up for its ostensible operation are not
truthful and are not followed, and too large a degree of discretion is
left to the officer in the field on the operation of the subterfuge.

Id. at 557.

The Sixth Circuit in Huguenin was obviously
concerned about the amount of discretion given officers on the scene,
since there were no guidelines governing their search for narcotics.
That concern does not afflict the policies in the instant case, however.
The IPD has made it clear that the purpose for its checkpoints is to
interdict narcotics traffic and, accordingly, has structured the
official checkpoint guidelines, which minimize officer discretion,
around that purpose. Thus, Huguenin is
inapplicable to the instant case.

Plaintiffs also cite United States v.
Morales-Zamora, 974 F.2d 149 (10th Cir. 1992), in support of
their position. Like Huguenin, the checkpoint in
Morales-Zamora was ostensibly set up to check
licenses and registrations. At trial, it was established that the actual
and undisclosed purpose of the checkpoint was to interdict drug traffic,
which became the issue on appeal. The legality of a checkpoint for
narcotics was not raised since the government conceded that "under
the Fourth Amendment it could not set up a roadblock for the sole
purpose of subjecting all the stopped vehicles to a canine sniff of the
exterior of the car." Id. at 151. The Tenth
Circuit concluded that the purpose of the checkpoint was to search for
narcotics and, given the government's concession, held the
checkpoint unconstitutional.

Morales-Zamora does not help Plaintiffs. The
Tenth Circuit did not analyze the question of whether the narcotics
checkpoint was constitutional because the government had conceded that
such a checkpoint would violate the Fourth Amendment. Accordingly, once
the court determined that the checkpoint was a pretext for narcotics
interdiction, it concluded without further discussion that the
checkpoint was unconstitutional. In addition, the narcotics purpose in
Morales-Zamora was secondary to the
license/registration check, rather than being the official policy,
unlike the instant case where the checkpoints' official purpose is
to interdict drug traffickers and where the official guidelines limit
officer's discretion in pursuing that
goal.13 In short,
Morales-Zamora is distinguishable from the instant
case based on differing factual and legal circumstances.

Accordingly, based on the Brown balancing test
and consistent with the relevant case law, the IPD checkpoints pass
constitutional muster and Plaintiffs' Motion for Preliminary
Injunction must be and is DENIED. This ruling
should not be construed as a judicial abandonment of the Fourth
Amendment, by which courts permit any stop-and-search procedure which is
instituted by law enforcement and is justified by the compelling
circumstances our country faces in waging a war against drugs. We
approve Defendants' use of checkpoints for drug interdiction, but
only because the policy under which they are effected is sufficiently
non-intrusive to justify their use. To be sure, a motorist's right
to be free from unreasonable searches and seizures must not be
trivialized or cavalierly sacrificed. Police actions must comport fully
with Fourth Amendment standards, and when they do, they deserve to be
upheld.

C) INDIANA CONSTITUTION CLAIM

Plaintiffs allege in their Complaint that, in addition to their
shortcomings under the United States Constitution, the checkpoints also
violate the Indiana Constitution's prohibition against
unreasonable searches and seizures under Article 1, Section 11,
Plaintiffs do not explicate this position in their Motion for
Preliminary Injunction, relying only on a passing mention at the
conclusion of their Reply Brief. This inadequate discussion undermines
Plaintiffs' ability to establish its likelihood of succeeding on
the merits of this claim.

The Indiana Supreme Court has frequently noted that "[s]eparate
and apart from the federal Fourth Amendment analysis, the Indiana
Constitution provides an independent prohibition against unreasonable
searches and seizures under Article 1, Section 11."
Ben-Yisrayl v. State, 690 N.E.2d 1141, 1152 (Ind.
1997); see also Moran v. State, 644 N.E.2d 536,
540 (Ind. 1994); State v. Lamar, 680 N.E.2d 540,
543 (Ind.Ct.App.1997). To date, However, the Indiana courts have not had
occasion to address whether a checkpoint for the purpose of searching
for narcotics is valid under the Indiana Constitution.
See State v. Garcia, 500 N.E.2d 158 (Ind. 1986)
(upheld sobriety checkpoint under the Fourth Amendment, but did not
address Indiana Constitution); Covert v. Smith,
612 N.E.2d 592 (Ind.App. 1993) (same). We decline
Plaintiffs' invitation to attempt to answer this question on the
limited and one-sided briefing now before us. Any, in any event, should
today's ruling on Plaintiffs' federal claim become our final
ruling on injunctive relief, we would, in all likelihood, determine that
in the interests of judicial economy, convenience, fairness and comity,
it is appropriate to relinquish our pendent jurisdiction over
Plaintiffs' state law claim, per Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 349-351, 108 S.Ct. 614, 618-619
n.7 (1988) and United Mine Workers v. Gibbs, 383
U.S. 715, 726, 86 S.Ct.1130, 1139 (1966). Accordingly, Plaintiffs'
Motion for Preliminary Injunction based on the Indiana Constitution is
DENIED.

IV. CONCLUSION

For all the aforereferenced reasons, Plaintiffs' Motion for
Class Certification is GRANTED. However,
Plaintiffs' Motion for Preliminary Injunction is
DENIED because Defendants' policy and use of
drug interdiction checkpoints do not violate the Fourth Amendment.
Plaintiffs' claim under the Indiana Constitution is also
DENIED based on their failure to establish a
likelihood of success on its merits.

4Plaintiffs bring their Complaint as a
class action for declaratory and injunctive relief and as an individual
action for damages. One may well question the need to bring any part of
the Complaint as a class action, as a ruling on the constitutionality of
the checkpoints will inevitably apply to all motorists in Indianapolis.
But in the Seventh Circuit, "it is clear that, if the
prerequisites and conditions of Rule 23 have been met, a court may not
deny class status because there is no 'need' for it."
Vickers v. Trainor, 546 F.2d 739, 747 (7th Cir.
1976); Bieneman v. City of Chicago, 838 F.2d 962,
964 (7th Cir. 1988); see also 7B Wright, Miller
& Kane, Federal Practice and Procedure §1785.2 (1986 &
Supp. 1998). Even if certification is unnecessary for practical reasons,
certification may not be denied if Rule 23 is satisfied.
See Paul v. State of Indiana Election Board, 743
F.Supp. 616, 618 (S.D.Ind. 1990) (Barker, J.).

5Fed.R.Civ.P. 23(b)(3) requires that the
questions of law or fact common to the members of the class predominate
over any questions affecting only individual members, and that a class
action be superior to other available methods for the fair and efficient
adjudication of the controversy. These requirements however, apply only
to classes that seek damages. They do not apply to a class, like the one
proposed here, that seeks only injunctive and declaratory relief.
See Mary Beth G. v. City of Chicago, 723 F.2d
1263, 1267 (7th Cir. 1983).

6The Fourth Amendment was incorporated
against the states by the Fourteenth Amendment's Due Process
Clause. See Contreras v. City of Chicago, 119 F.3d
1286, 1290 (7th Cir. 1997).

8Of course, further detention of a
particular motorist occurs when officers develops individualized
suspicion of wrongdoing.

9Whether one is "seized"
while waiting in traffic to reach the checkpoint and, thus, whether that
delay should be considered in assessing the reasonableness of the
operation, depends on whether the person reasonably believed he or she
was not free to turn around and avoid the checkpoint.
Merrett v. Moore, 58 F.3d 1547, 1552 (11th Cir.
1995), cert. denied, 117 S.Ct. 58 (1996).
"The clock for assessing the reasonableness of the delay caused by
the checkpoint begins to run when a reasonable person would believe he
cannot leave the line and avoid the checkpoint."
Id. (citing United States v. Mendenhall, 446 U.S.
544, 100 S.Ct. 1870 (1980)).

10Moreover, as we
have noted previously, Sitz does not require a
"special need."

11Checkpoints have
been upheld routinely for other purposes as well. See,
e.g., United States v. Trevino, 60 F.3d 333 (7th Cir. 1995)
(upheld checkpoint whose purpose was to detect equipment violations and
prevent uninsured and non-licenced motorists from operating on the
highways); United States v. O'Mara, 963 F.2d
1288, 1291-92 (9th Cir. 1992) (reasonable articulable suspicion not
required when police utilized highway roadblock to stop all cars leaving
national park in response to report of illegal firearms discharges);
Romo v. Champion, 46 F.3d 1013, 1020 (10th Cir.
1995) (reasonable articulable suspicion not required to stop car at
roadblock on public thoroughfare which was only visitor route to
prison).

12The Eleventh
Circuit in Merrett noted that "[n]o question
is presented about whether a state can lawfully conduct a roadblock
solely to intercept illegal drugs; and we leave that question
open." Id. at 1551 n.3.

13See
United States v. Galindo-Gonzales, 142 F.3d 1217 (10th Cir. 1998)
(suggesting that a pretextual checkpoint for the actual purpose of
searching for illegal aliens would be unconstitutional, even though it
would be permissible if its official purpose were
to search for illegal aliens).